Robert Abbey v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of Sep 22 2014, 8:57 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JESSE R. POAG GREGORY F. ZOELLER
Newburgh, Indiana Attorney General of Indiana
CHANDRA K. HEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT ABBEY, )
)
Appellant-Defendant, )
)
vs. ) No. 82A01-1403-CR-119
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURGH CIRCUIT COURT
The Honorable Kelli E. Fink, Judge
Cause No. 82C01-1307-FC-761
September 22, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Robert Abbey (“Abbey”) appeals the Vanderburgh Circuit Court’s order denying
his motion to apply his cash bond toward restitution owed to the victim of his criminal
offense. Concluding that the trial court properly released the cash bond to Abbey’s
former counsel pursuant to the terms of Abbey’s agreement with counsel, we affirm.
Facts and Procedural History
On July 11, 2013, Abbey was charged with Class C felony fraud on a financial
institution. Shortly thereafter, he posted a $1000 cash bond. Abbey also hired private
counsel, Terrell Maurer (“Maurer”). Abbey executed a retainer contract wherein he
agreed to pay a $2500 flat fee. Abbey also assigned his interest in his $1000 cash bond to
Maurer as a down payment for his legal fees. See Ex. Vol., Exs. 1, 3.
On October 25, 2013, Maurer filed a motion to withdraw from the case, which was
granted. However, the trial court denied Maurer’s request to release Abbey’s cash bond.
A public defender was appointed to represent Abbey. On January 27, 2014,
Abbey pleaded guilty to Class C felony fraud on a financial institution. The plea
agreement provided, in relevant part, that Abbey would pay $1000 in restitution within
180 days of sentencing. Appellant’s App. p. 28. Prior to sentencing, Abbey filed a
motion to apply his cash bond to the restitution owed.
On February 13, 2014, Abbey’s sentencing hearing was held. At the hearing, the
trial court also heard argument concerning release of his cash bond. Former counsel
Maurer presented evidence that his fees exceeded $1000. The trial court released
Abbey’s cash bond, less costs, to counsel after concluding that Abbey voluntarily gave up
his interest in the bond by assigning his interest to Maurer. Abbey now appeals.
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Discussion and Decision
Abbey does not dispute that he assigned his interest in his cash bond to Maurer.
Appellant’s Br. at 4. However, he argues that he assigned only his limited interest in the
bond subject to the trial court’s authority “to take restitution and public defender costs
from the bond” pursuant to Indiana Code section 35-33-8-3.2. Id. at 5.
Indiana Code section 35-33-8-3.2 governs the conditions a trial court can order
when admitting a defendant to bail. See Wright v. State, 949 N.E.2d 411, 414 (Ind. Ct.
App. 2011). Abbey specifically paid his cash bond to the Vanderburgh Circuit Court
pursuant to subsection 35-33-8-3.2(a)(2), which provides in pertinent part:
A court may admit a defendant to bail and impose any of the following
conditions to assure the defendant’s appearance at any stage of the legal
proceedings, or, upon a showing of clear and convincing evidence that the
defendant poses a risk of physical danger to another person or the
community, to assure the public’s physical safety:
***
(2) Require the defendant to execute:
(A) a bail bond by depositing cash or securities with the clerk
of the court in an amount not less than ten percent (10%) of
the bail; and
(B) an agreement that allows the court to retain all or a part
of the cash or securities to pay fines, costs, fees, and
restitution that the court may order the defendant to pay if the
defendant is convicted.
A portion of the deposit, not to exceed ten percent (10%) of the
monetary value of the deposit or fifty dollars ($50), whichever is the
lesser amount, may be retained as an administrative fee. The clerk
shall also retain from the deposit under this subdivision fines, costs,
fees, and restitution as ordered by the court, publicly paid costs of
representation that shall be disposed of in accordance with
subsection (b), and the fee required by subsection (d).
(Emphasis added).
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Abbey signed the required bond agreement with the court on July 19, 2013. The
agreement provides in relevant part:
When the conditions of this bond have been performed and the defendant
has been discharged from all obligations in this case, the Clerk of the Court
shall return to the defendant, unless the Court orders otherwise, ninety
percent (90%) of the sum which has been deposited and shall retain as bond
costs ten percent (10%) of the amount deposited.
Appellant’s App. p. 14. The agreement also provides that the trial court “may order”
ninety percent of the cash bond “or whatever amount is repayable to the defendant” to be
paid to the defendant’s attorney. Id.
Abbey essentially argues that his assignment of his cash bond to Maurer is
meaningless because, in his plea agreement, he agreed to pay $1000 restitution within
180 days of sentencing. However, when Abbey voluntarily assigned his interest in the
cash bond to Maurer, no plea agreement had been reached and he had not been ordered to
pay restitution. Simply said, Abbey assigned to Maurer the interest in his cash bond he
otherwise would have retained under Indiana Code section 35-33-8-3.2(a)(2) and under
his bond agreement with the court.
While Indiana Code section 35-33-8-3.2(a)(2) gives the trial court discretionary
authority to retain a defendant’s cash bond to satisfy a restitution judgment, the statute
does not mandate satisfaction of a restitution judgment by payment of available funds
from a defendant’s cash bond. See I.C. § 35-33-8-3.2(a)(2)(B). Therefore, the trial court
acted within its discretion when it refused Abbey’s request to apply his cash bond to the
restitution judgment.
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Abbey does not contest the assignment of his interest in his cash bond, which he
voluntarily assigned to his former counsel. Moreover, the trial court properly released
the remainder of Abbey’s cash bond to Maurer pursuant to the terms of the retainer
contract.1 For all of these reasons, we affirm the judgment of the trial court.
Affirmed.
RILEY, J., and CRONE, J., concur.
1
Cf. Wright, 949 N.E.2d at 414-15 (“Wright agreed to give the trial court the authority to retain all or a
part of the $1000 placed in escrow to pay fines, costs, fees, restitution, and publicly paid costs of
representation . . . .” Because she was convicted, “the trial court had the authority to use the escrow funds
pursuant to the cash bail bond agreement. Wright entered into a contract, the terms of which are
specifically authorized by statute, and she is bound by the terms of that contract.”).
5